Law Offices of Stanley E. Niew, P.C.
attorneys at law
LABOR & CONSTRUCTION LAW UPDATES
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MARCH 2023
Inside This Issue
1. NLRB Rescinds Four Provisions of the 2019 Election Rule and Delays
Implementation of Remaining Provisions After Circuit Court Decision
2. NLRB and Consumer Financial Protection Bureau Announce Partnership to Address Employer
Surveillance, Monitoring, Data Collection, and Financial Practices
3. Illinois Supreme Court Rules BIPA Claims Accrue with each Scan
4. Nurse’s Supervisory Duties Made Her an Exempt Executive
5. Confidentiality and Non-Disclosure Agreements Do Not Necessarily
Restrict a Person from Working for Another Employer
NLRB Rescinds Four Provisions of the 2019 Election Rule and Delays
Implementation of Remaining Provisions After Circuit Court Decision
On March 9, 2023, the Federal Register filed for public inspection the National Labor Relations Board (“NLRB”)’s notice to rescind four provisions from the Board’s Rules and Regulations contained in the Final Rule on representation case procedures published on December 18, 2019.
On January 17, 2023, the Court of Appeals issued a judgment ruling that three challenged provisions of the 2019 Final Rule were improperly enacted without notice and comment: (1) allowing employers up to five business days to furnish the voter list following the direction of election; (2) precluding Regional Directors from issuing certifications following elections if a request for review is pending or during the time in which a request for review could be filed; and (3) limiting a party’s selection of election observers to individuals who are current members of the voting unit whenever possible. Those provisions have never been in effect because they were previously enjoined.
The Court of Appeals also held that a provision in the 2019 Rule providing for automatic impoundment of ballots under certain circumstances when a petition for review is pending with the Board, which is currently in effect, is contrary to the National Labor Relations Act.
The NLRB’s rule rescinds all four of the provisions struck down by the Court of Appeals and reinstates previous regulations.
The Federal Register also filed for public inspection a notice staying the effective date of two other provisions of the 2019 Rule to September 10, 2023.
These provisions had been enjoined by the District Court and have never gone into effect. The provisions (1) allow parties to litigate disputes over unit scope and voter eligibility prior to the election and (2) instruct Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. The Court of Appeals found that the Board could lawfully issue these provisions without notice and comment, but remanded the case to the District Court so that it could consider other grounds on which the provisions had been challenged as unlawful.
The Board will continue to postpone implementation of these provisions as litigation remains pending and while the Board considers whether to revise or repeal the 2019 Rule.
NLRB and Consumer Financial Protection Bureau Announce Partnership to Address Employer
Surveillance, Monitoring, Data Collection, and Financial Practices
On March 7, 2023, NLRB General Counsel Jennifer Abruzzo and Consumer Financial Protection Bureau (“CFPB”) Director Rohit Chopra signed a memorandum of understanding (“MOU”) creating a formal partnership between the two agencies to better protect American workers and address practices of employer surveillance, monitoring, data collection, and employer-driven debt, which can include a worker going into debt with their employer for the purchase of equipment, supplies, or required training.
The agencies will now be able to closely collaborate by sharing information, conducting cross-training for staff at each agency, and partnering on investigative efforts within each agency’s authority.
“Employers’ practices and use of artificial intelligence tools can chill workers from exercising their labor rights,” said General Counsel Abruzzo. “As our economy, industries, and workplaces continue to change, we are excited to work with CFPB to strengthen our whole-of-government approach and ensure that employers obey the law and workers are able to fully and freely exercise their rights without interference or adverse consequences.”
While the agencies have two distinct missions, the CFPB and NLRB share an interest in protecting American workers. The CFPB is responsible for ensuring that markets for consumer financial products are fair, transparent, and competitive for American workers. The NLRB is responsible for protecting employees from unfair labor practices which interfere with the rights of employees to join together to improve their wages and working conditions, to organize a union and bargain collectively, and to engage in other protected concerted activity.
Workers who think their labor rights have been violated can call for assistance in filing an unfair labor practice charge.
Consumers can submit complaints about employer-driven debt and surveillance, as well as about other financial products and services, by visiting the CFPB’s website or by calling (855) 411-2372. Employees of companies who they believe their company has violated federal consumer financial laws, including violations related to workplace financial products and services, are encouraged to send information about what they know to whistleblower@cfpb.gov.
Illinois Supreme Court Rules BIPA Claims Accrue with each Scan
The Illinois Supreme Court ruled in the last week in February that a claim under Biometric Information Privacy Act (“BIPA”) with each unlawful scan or transmission of a person’s biometric identifiers. This means a violation of BIPA can occur on every scan rather than only the initial scan.
The plaintiff alleged she was required to scan her fingerprints to access the computer system in violation of BIPA. Plaintiff further alleged her fingerprints were sent to a third-party vendor for authorization without her consent every time she scanned it. This case was a 4-3 decision suggesting it may get reviewed again and possibly amended or reversed.
Nurse’s Supervisory Duties Made Her an Exempt Executive
A Federal Judge in the Northern District of Illinois ruled in favor of the employer holding the Plaintiff was an executive exempt from overtime pay under the Fair Labor Standards Act.
The Court focused on the nurse’s duties which included supervising six or more employees on each shift.
The plaintiff acknowledged she performed some managerial functions but her primary nursing work included direct care to patients, making beds, taking vitals and bathing and feeding patients. The judge also honed in on the fact that the plaintiff was making $5 or $6 more than the employees she supervised.
Employees such as the plaintiff nurse can perform many non-management duties and still qualify as a supervisor exempt from overtime.
Confidentiality and Non-Disclosure Agreements Do Not Necessarily
Restrict a Person from Working for Another Employer
District Judge Leinenweber sitting in the Northern District of Illinois refused to issue an injunction against a former employee of CFS a national staffing firm. When the Defendant left the employment of CFS she went to work for a CFS competitor and she contacted several CFS clients for whom she placed employees working for CFS in the past. Defendant also sent emails with her updated employment information to contacts she made through CFS.
While the District Judge refused to issue an injunction, the Judge found that CFS kept detailed records which would allow one to calculate any profits or contracts lost. Thus, if there are any damages due to plaintiff, they would be relatively easy to calculate.
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